Fighting HHS: Health Care Discrimination Against LGBT People is Illegal –
The first and largest organization for lesbian, gay, bisexual, transgender, and queer (LGBTQ+) people, and allies participated in a broad coalition of organizations by submitting more than 132,400 comments to the U.S. Department of Health and Human Services (HHS), urging the federal government to retain existing nondiscrimination protections for LGBTQ+ people and their families, and to withdraw its proposed rule to eradicate the current Health Care Rights Law, known as Section 1557 of the Patient Protection and Affordable Care Act (ACA):
For one intent on the fight, Lambda Legal, submitted comments to the U.S. Department of Health and Human Services objecting to the proposed rule change that seeks to roll back the protections under the Affordable Care Act’s (ACA) nondiscrimination provision (also known as Section 1557) that prohibit discrimination in health care on the basis of sex. The proposed rule seeks to carve-out LGBT people from the ACA’s nondiscrimination protections, inviting health care workers, doctors, hospitals and health insurance companies that receive federal funding to refuse to provide or cover health care services critical to the health and wellbeing of LGBT people and people living with HIV. But this attempt to roll back protections through an agency rule change cannot change the law itself.
“The ACA is a law that prohibits health care and insurance providers from discriminating based on sex, which means LGBTQ patients are protected,” said Senior and Transgender Rights Project Attorney for Lambda Legal, Sasha Buchert. “This is an especially appalling attempt by the Trump administration to harm LGBTQ people because health care is so important, and because discrimination against transgender patients in particular is both rampant and devastating. The administration knows full well that court after court has held that the ACA protects transgender people. The proposed rule, if it went into effect, would only sow confusion in the health care industry, encourage more insurers to discriminate, and lead to more lawsuits to protect patients. Our communities need to know that, despite the Trump administration’s mean-spirited agency attacks, they continue to have rights under the law and Lambda Legal stands ready to fight this. If you experience discrimination when seeking health care because of your sexual orientation, gender identity or HIV status you should contact us immediately.”
Lambda Legal’s docket has multiple examples of LGBT people confronting discrimination and bias in accessing health care, including a lesbian couple denied infertility treatment at a women’s health clinic (see here), a gay man whose doctor refused to write him a medical prescription (see here) and a transgender man whose hospital refused to allow his surgeon to perform a routine hysterectomy (see here.) Lambda Legal has documented hundreds of other instances of discrimination, included many described in the comments on the proposed rule Lambda Legal submitted to HHS (see here).
From the comments submitted by Lambda Legal:
“Although the NPRM cannot change the law, as interpreted by multiple courts already, it improperly signals to those who wish to discriminate that they are free to do so, promising direct harm to LGBTQ people, and especially transgender people. This lawless Proposed Rule will only spur both mistreatment of patients and resulting lawsuits, placing health care providers in legal jeopardy by falsely signaling to them that it is perfectly fine to discriminate contrary to established federal law. Similarly, all the Proposed Rule will do concerning insurers is to create confusion, foster discrimination against LGBTQ patients, and pointlessly expose insurers to costly lawsuits.”
The public comment period for the proposed rule change ended yesterday. Advocates have collected more than 132,400 comments opposing the Trump administration’s attack on health care nondiscrimination rights and delivered them directly to HHS. Next, HHS will publish a final rule along with an effective date.
Lambda Legal is a member of the Health Care Rights Law Coalition, which also includes ACLU, Asian & Pacific Islander American Health Forum, Center for American Progress, Center for Constitutional Rights, Center for Reproductive Rights, CenterLink, Equality Federation, FORGE, In Our Own Voice: National Black Women’s Reproductive Justice Agenda, NARAL Pro-Choice America, National Center for Transgender Equality, National Council of Jewish Women, National Health Law Program, National LGBTQ Task Force, National Partnership for Women & Families, National Women’s Law Center, PFLAG National, Planned Parenthood Federation of America, Raising Women’s Voices for the Health Care We Need, The Leadership Conference Education Fund, TransChance Health, Transgender Law Center, Transgender Legal Defense and Education Fund, and WHARR.
The PFLAG Press release Noted:
“Data proves the discrimination and disparities that LGBTQ+ people currently face, especially transgender people. I know: As a transgender immigrant of Latinx descent, I’ve lived that discrimination,” said Diego Miguel Sanchez, Director of Advocacy, Policy, and Partnerships at PFLAG National. “The experience would only be exacerbated if these protections are erased. We are thrilled that PFLAG chapter members and supporters from across the country submitted their public comments, lifting voices from many diverse backgrounds to one common message: Preserve existing protections in healthcare, because our lives depend on it.”
The proposed rule would cost LGBTQ+ people and their families their access to healthcare and health insurance coverage for LGBTQ+ patients and people–and their families–across the country. The rollback would also negatively impact people who have had or will need abortion care and other reproductive health services; people whose first language is not English; people with HIV and AIDS; immigrants; people of color; and people with disabilities; many marginalized people would feel this impact across a variety of identities.
Section 1557 and the implementing regulations of 2016 disallow health insurance companies from discrimination in vehicles such as marketing practices and benefit design, and has been a literal lifeline for thousands of people. The new proposed rule seeks to excuse and exempt most health insurance plans from employing Section 1557’s nondiscrimination protections.
Sanchez emphatically stated, “PFLAG National and our families oppose the proposed rule to remove nondiscrimination protections currently included in the Patient Protection and Affordable Care Act, and our hundreds of thousands of members across the country urge HHS to withdraw it.”
See Lambda Legal’s Know Your Rights: Health Provider Discrimination, a resource for transgender and gender nonconforming people by visiting: https://www.lambdalegal.org/know-your-rights/article/trans-health-care-discrimination
Find additional materials about your right to access health care and be treated fairly: https://www.lambdalegal.org/issues/health-care-fairness
If you experience discrimination in a health care setting, let us know via our Health Care Tracker by visiting https://www.lambdalegal.org/healthcarehelp
UPDATED to add more commentary:
Transgender Legal Defense & Education Fund (TLDEF):
TLDEF joins dozens of LGBTQ and allied organizations in demanding that the U.S. Department of Health and Human Services (HHS) to permanently halt implementation of a proposed new rule that would invite insurance companies, hospitals, doctors, nurses, and other providers to illegally deny patients care because of who they are, despite protections mandated by the Affordable Care Act.
Since the proposed rule was made public on May 24th, TLDEF has added its voice to the chorus of opposition against the proposed rule by submitting comments that can be read here.
“A patient’s health should always be a medical provider’s first priority,” said TLDEF Executive Director Andy Marra. “Yet at every turn, this administration remains resolved to threaten and undermine health protections for transgender people who struggle to receive basic and life-saving care. This proposed regulation is another cruel attempt to strip transgender people of protections already guaranteed under the law. We are prepared to challenge this discriminatory effort and look forward to working with our partners to ensure these protections remain intact.”
TLDEF has joined a broad coalition, including Protect Trans Health to oppose the repeal of health protections. The public comment period ended last night with more than 132,000 comments against this harmful and discriminatory rule submitted to HHS. The federal government is now expected to summarize and consider public comments before implementation can move forward.
In addition to placing transgender people at heightened risk, the regulation would negatively impact the entire LGBTQ community, people who have had or will need abortion care and other reproductive health services, people whose first language is not English, immigrants, people of color, and people with disabilities. Since the proposed rule became public, the coalition has led efforts to highlight its widespread and harmful impact and to galvanize the public to submit comments opposing its adoption.
According to a national study, one in four transgender people have experienced problems with their health insurance in the past year related to their gender identity. In addition, more than a third of transgender people have experienced a negative interaction with a health care provider ranging from verbal harassment to refusal of treatment.
Posted by: Melanie Nathan